By Vishnuguptha
“Voting is the most precious right of every citizen, and we have a moral obligation to ensure the integrity of our voting process.” -Hillary Clinton
Voting for Provincial Council elections in Eastern, Sabaragamuwa and North Central Provinces are scheduled to begin in 24 hours. Voters in these Provinces will walk and line up along the rugged roads to cast their precious ballots for the party and candidates of their choice. The question is whether this choice is made independent of any intimidation or whether it is really a free choice.
Election violence and abuse of powers by the incumbent party is not a fresh phenomenon in Sri Lanka and nor has it shown any signs of lessening over the years. From physical attack on individuals and groups to intimidation of voters suspected of being on the other camp, to abuse of government property and offerings of ‘job-baits’ to would be-voters as bribes, have in fact been on a steady rise over the last three decades. Succeeding government parties have been trying to do one better than the previous ones. Into this set-up has entered enormous money power, being displayed so vulgarly along roadsides in the facade of massive, life-size billboards and cut outs, brazenly telling a shameless story of political propaganda and ill-gotten wealth.
While the main opposition party candidates and their leaders cry out loud about corruption, misuse and abuse of power and favouritism, the accused perpetrators carry on regardless; why? Because the only official who is charged with the responsibility of dealing a fair hand and who can bring some semblance of fair play into the game was missing in action at the start of the campaign. That official is the Commissioner of Elections.
His office is supposed to be independent of any political influence. His is a job whose inherent powers were designed to withstand the storms of power politics and apply the law ruthlessly and to always safeguard the rights of the voter in the long-term interests of the sustenance of the country’s Constitution. If he fails, the system fails and with it, the long backward retreat into political paganism begins.
Declared himself helpless
As far back as 8 July, 2012, Commissioner Mahinda Deshapriya, declared himself helpless, in the face of the heavy recruitment that was being carried out in the Provinces, in which elections were scheduled to be held. His answer to this blatant accusation was that he had already written to the Public Service Commission regarding this matter.
He could go no further, he had stated. This lackadaisical attitude and the accompanying inaction would cause immense heartburn to the non-government candidates, while it would have a long-lasting adverse effect on the country as a whole. If the person charged with the job of guarding the henhouse is helpless in his own words, to whom can the owner of the henhouse (or the hens?) turn to?
The Commissioner is not being very forthcoming, nor is he being forthright. Either he is totally unaware of the inherent powers vested in him by the Constitution or he is wilfully ignoring them, to perpetuate himself in the exalted seat he occupies at present. If the first scenario is the case in point, then he is not qualified to hold the job; if it’s the latter, then he is just plain spineless. Whichever it is, it is not a healthy formula for the democratic traditions and institutions of the country.
Yet, in a subsequent press reply that he had issued, the Commissioner refuted the allegations of ‘helplessness.’ The first press interview or report was dated 8 July, while the next one issued to the same news network was dated 29 July. What happened in this interval?
As we understand, a well-known lawyer cum politician, in a letter dated 17 July, 2012 and addressed to the Commissioner, intimated in legalistic detail that it was quite within his (Commissioner’s) powers as vested in the Constitution, to enforce fair-play and justice.
Citing chapter and verse of Sri Lanka’s Constitution, other relevant statutes and Acts of Parliament, this lawyer challenged the Commissioner in a manner that has not been done ever before. He argued that the Commissioner simply cannot hide behind the façade of the 18th Amendment and wash his hands off, so to speak. To do so would be, not only utterly futile but the long-term damage that it can cause to the democratic traditions and practices in Sri Lanka would be irreparable.
Abuse of powers
Despites the presence of the 18th Amendment, the particular lawyer contends that powers vested in the Constitution are more than sufficient for the Commissioner General of Elections to take remedial measures that he deems fit and necessary for the conduct of fair and honest elections in any part of the country.
As clearly stated, in Chapter 1.3 of the Sri Lanka Constitution, in the Republic of Sri Lanka ‘sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.’
Therefore, this matter of government abuse of powers is directly related to the sovereignty of the people. If such violations by any quarter engaged in the election process are carried out, then they have a direct bearing on the sovereignty of the people.
Furthermore, in Chapter XIV, clause 93 reads as: “The voting for the election of the President of the Republic and the Members of Parliament and at any Referendum shall be free, equal and by secret ballot.” This particular clause goes to the core of the freedom and equality notion as enunciated in the Constitution.
Clause 104 under the same Chapter XIV, also says thus: The Commissioner of Elections shall exercise, perform or discharge all such powers, duties or functions as may be conferred or imposed on or vested in him by the law for the time being in force relating to elections to the office of President of the Republic and Members of Parliament and to Referenda, or by any other written law.
Therefore, Mr. Commissioner, in terms of the above-mentioned Chapters of the Constitution of Sri Lanka, in relation to the elections that have been called for in Eastern, North Central and Sabaragamuwa Provinces, you and you alone are the officer-in-chief mandated to ensure fair and just elections in the said Provinces.
You cannot abdicate that responsibility and duty that has been expressly conferred on you by the Constitution. To do so would be a violation of the profound trust that the people have invested in you.
The enormous powers vested in the Commissioner of Elections as per Provincial Council Elections Act of 1988, further buttress his ability to ensure free and fair elections. It empowers him to issue decrees and orders via Gazette notifications as and when deemed necessary. Especially as per Chapters 80, 126 and 127 of the Provincial Council Elections Act of 1988, the Commissioner has powers, if he chooses to use them on the side of the voter and the Constitution.
If, on the other hand, should the Commissioner decide to disregard these powers inherent in his office, he is clearly violating Chapter VI of the Constitution and he would be found to be derelict of duty. Whichever way the Commissioner decides to play the game, he cannot and should not leave any room for the continuation of a stalemate, thinking that the people would not care.
History has ample evidence that when a grave national crisis is in the offing, it was always a fair-minded few who gave leadership to the apathetic many and then changed its course for ever. The Commissioner might as well be aware of these historical events, so that he may leave a better legacy than his predecessor. courtesy: Ceylon Today